State of Washington, et al v. Donald J. Trump, et al

Filing 25

Filed (ECF) Americans United for Separation of Church and State; Southern Poverty Law Center Corrected Motion to become amicus curiae. Date of service: 02/06/2017. [10302889] [17-35105]--[COURT UPDATE: Updated docket text to reflect content of filing, resent notice. 02/06/2017 by LA] (Katskee, Richard) [Entered: 02/06/2017 12:32 AM]

No. 17-35105
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STATE OF WASHINGTON, et al.
Plaintiffs-Appellees,
v.
DONALD TRUMP, et al.,
Defendants-Appellants.
On Motion for a Stay Pending Appeal of a
Temporary Restraining Order Issued by the
United States District Court for the Western District of Washington
Case No. 2:17-cv-141, Hon. James L. Robart
BRIEF OF AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE
AND THE SOUTHERN POVERTY LAW CENTER AS AMICI CURIAE
SUPPORTING APPELLEE AND DENIAL OF A STAY

KRISTI L. GRAUNKE
MICHELLE R. LAPOINTE
Southern Poverty Law
Center
1989 College Avenue NE
Atlanta, GA 30317
[phone]
ANGELO J. CALFO
KRISTIN W. SILVERMAN
Calfo Eakes & Ostrovsky
PLLC
1301 Second Avenue
Suite 2800
Seattle, WA 98101
[phone]

RICHARD B. KATSKEE
ERIC ROTHSCHILD*
ANDREW L. NELLIS**
BRADLEY GIRARD
KELLY M. PERCIVAL***
Americans United for
Separation of Church and
State
1310 L Street, NW, Suite 200
Washington, DC 20005
[phone]
* Admitted in Pennsylvania only.
Supervised by Richard B. Katskee,
a member of the D.C. bar.
** Admitted in New York only.
Supervised by Richard B. Katskee,
a member of the D.C. bar.
*** Admitted in California only.
Supervised by Richard B. Katskee,
a member of the D.C. bar.

Counsel for Amici Curiae

CORPORATE DISCLOSURE STATEMENT

Amici are nonprofit corporations. They have no parent corporations,
and no publicly held corporation owns any portion of either of them.

i

TABLE OF CONTENTS
Interests of the Amici Curiae............................................................................... 1
Introduction .......................................................................................................... 1
Argument .............................................................................................................. 2
The Temporary Restraining Order Was Warranted; A Stay Is Not. ................. 2
A. Plaintiffs Are Likely To Succeed On The Merits Of Their
Establishment Clause Claim. ............................................................... 2
1. The Executive Order Fails The Larson Test. ................................ 3
2. The Executive Order fails the Lemon Test. ................................... 6
B. The Balance Of Harms And The Public Interest Favor The
TRO And Denial Of A Stay. ................................................................ 11
Conclusion........................................................................................................... 13

ii

TABLE OF AUTHORITIES

Cases
Awad v. Ziriax,
670 F.3d 1111 (10th Cir. 2012) .................................................................. 3
Connection Distrib. Co. v. Reno,
154 F.3d 281 (6th Cir. 2002) .................................................................... 11
Edwards v. Aguillard,
482 U.S. 578 (1987) .................................................................................... 6
Elrod v. Burns,
427 U.S. 347 (1976) ............................................................................ 11, 12
Epperson v. Arkansas,
393 U.S. 97 (1968) ...................................................................................... 2
Holt v. Hobbs,
135 S. Ct. 853 (2015) .................................................................................. 5
Joelner v. Vill. of Wash. Park,
378 F.3d 613 (7th Cir. 2004) .................................................................... 11
KH Outdoor, LLC v. City of Trussville,
458 F.3d 1261 (11th Cir. 2006) ................................................................ 12
Larson v. Valente,
456 U.S. 228 (1982) ............................................................................ 2, 3, 4
Lemon v. Kurtzman,
403 U.S. 602 (1971) .................................................................................... 6
Lynch v. Donnelly,
465 U.S. 668 (1984) .......................................................................... 6, 7, 10
McCreary County, Ky. v. ACLU of Ky.,
545 U.S. 844 (2005) ...................................................................... 2, 6, 7, 10
Melendres v. Arpaio,
695 F.3d 990 (9th Cir. 2012) .............................................................. 11, 12
New Motor Vehicle Bd. v. Orrin W. Fox Co.,
434 U.S. 1345 (1977) ................................................................................ 12

iii

TABLE OF AUTHORITIES—continued
Santa Fe Indep. Sch. Dist. v. Doe,
530 U.S. 290 (2000) .......................................................................... 7, 8, 10
Trunk v. City of San Diego,
629 F.3d 1099 (9th Cir. 2011) .................................................................... 8
United States v. Oakland Cannabis Buyers’ Co-op.,
532 U.S. 483 (2001) .................................................................................. 12
Vernon v. City of L.A.,
27 F.3d 1385 (9th Cir. 1994) ...................................................................... 6
Wallace v. Jaffree,
472 U.S. 38 (1985) ...................................................................................... 7
Statutes, Rules, and Regulations
Exec. Order No. 13,769,
82 Fed. Reg. 8977 (Jan. 27, 2017) ................................................. 3, 4, 8, 9
Religious Freedom Restoration Act,
42 U.S.C. § 2000bb-1 (2015) ...................................................................... 5
Other Authorities
Figures at a Glance, UNHCR, http://bit.ly/2cmTBiF .................................... 9
Diaa Hadid, What Muslims Do on Hajj, and Why,
N.Y. TIMES (Sept. 8, 2016), http://nyti.ms/2kYGovS ................................ 5
Michael Edison Hayden & Maia Davis, World’s Airlines Are
Told It’s Back to Business as Usual for US-bound Travelers
in Wake of Judge’s Order, ABC NEWS (Feb. 4, 2017),
http://abcn.ws/2l8PYvy ............................................................................ 11
Jens Manuel Krogstad & Jynnah Radford, Key Facts About
Refugees to the U.S., PEW RES. CTR. (Jan. 30, 2017),
http://pewrsr.ch/2kk7ro8 ............................................................................ 8
Message from U.S. Embassy Tel Aviv Consular Section,
U.S. EMBASSY IN ISRAEL, http://bit.ly/2l0KWB8 ..................................... 10

iv

TABLE OF AUTHORITIES—continued
Ellen Nakashima, Domestic Extremists Have Killed More
Americans than Jihadists Since 9/11. How the Government
Is Responding, WASH. POST (Oct. 15, 2015),
http://wapo.st/1Qh8Kft............................................................................... 5
Alex Nowrasteh, Where Do Terrorists Come From? Not the
Nations Named in Trump Ban, NEWSWEEK (Jan. 31, 2017),
http://bit.ly/2kWoddx.................................................................................. 5
PEW RES. CTR., THE GLOBAL RELIGIOUS LANDSCAPE (2012),
http://bit.ly/2k4Us8B .................................................................................. 8

v

INTERESTS OF THE AMICI CURIAE1

As detailed in the accompanying motion, amici curiae are nonprofit
public-interest organizations committed to preserving religious freedom.
Because the Executive Order under challenge discriminates against
Muslims based solely on their faith, and because constitutional injuries
will accrue immediately if the temporary restraining order is stayed, amici
have a strong interest in ensuring that the TRO remains in place.
INTRODUCTION

Executive Order 13,769 makes good on President Trump’s promise to
ban Muslims from entering the country. See First Am. Compl. ¶¶ 42–61.
The Executive Order is unsupported by fact and is instead motivated by
religious animus. It has already harmed scores of people; if reinstated, it
will harm millions more. Accordingly, the district court issued a temporary
restraining order and directed the parties to propose a briefing schedule on
the State of Washington’s motion for a preliminary injunction.
Instead of having the preliminary-injunction motion resolved with
dispatch, the government appeals an unappealable order and seeks the
extraordinary relief of an emergency stay, contending that being

No counsel for a party authored this brief in whole or in part, and no
person other than amici, their members, or their counsel made a monetary
contribution intended to fund the brief’s preparation or submission. As the
motion details, the parties appear to have consented to this filing.
1

1

prevented from deporting and refusing entry to people based on their
religion makes it, the government, the injured party. Nonsense.
The Executive Order harms the State, its institutions, and its
citizens. And because the Executive Order on its face violates the
Establishment Clause—among other constitutional provisions—it is
indefensible as a matter of law. If it goes into effect, it will do immediate
and irreparable damage to individuals, families, and entire communities.
Should this Court consider the merits of this impermissible appeal,
therefore, it should conclude as the district court did: The Executive Order
cannot stand—even for a day. The request for a stay should be denied.
ARGUMENT
THE TEMPORARY RESTRAINING ORDER WAS WARRANTED; A STAY IS NOT.
A.

Plaintiffs Are Likely To Succeed On The Merits Of Their
Establishment Clause Claim.

“[T]he First Amendment mandates governmental neutrality” with
respect to religion, forbidding official discrimination. Epperson v.
Arkansas, 393 U.S. 97, 104 (1968); accord, e.g., McCreary County, Ky. v.
ACLU of Ky., 545 U.S. 844, 860 (2005); Larson v. Valente, 456 U.S. 228,
246 (1982). Ignoring this clear constitutional command, the government
has singled out one religious group—Muslims—for official disfavor and
maltreatment. By instituting a wide-ranging, punishing ban on Muslim
immigrants, the government runs roughshod over core First Amendment
2

protections. The district court therefore correctly concluded that the State
is likely to succeed on the merits of its claims.
1.

The Executive Order Fails The Larson Test.

“The clearest command of the Establishment Clause is that one
religious denomination cannot be officially preferred over another.”
Larson, 456 U.S. at 244. Thus, when the government designates one
denomination for different treatment—favorable or unfavorable—its
action is subject to strict scrutiny under Larson v. Valente, supra. See, e.g.,
Awad v. Ziriax, 670 F.3d 1111, 1128 (10th Cir. 2012) (applying strict
scrutiny to and invalidating state law disfavoring Islam).
The Executive Order singles out countries that are almost entirely
Muslim and subjects those who were born in or come from those
countries—i.e., Muslims—to harsh legal disabilities and punishments,
including exclusion, detention, and expulsion. Exec. Order No. 13,769, 82
Fed. Reg. 8977 (Jan. 27, 2017). Even legal U.S. residents are targeted and
put at severe risk of detention and deportation because of their officially
disfavored Muslim faith. First Am. Compl. Ex. 10.
The Executive Order also favors refugees who are “religious
minorit[ies]” in their home countries, again assigning legal rights based on
religious denomination. See Exec. Order No. 13,769 § 5(b), (e). To be sure,
affording

refuge

to

victims

of

religious
3

persecution

would

be

constitutionally permissible. But merely being “a minority religion in the
individual’s country of nationality” (id. § 5(b)) does not automatically make
one a victim of persecution, so affording preferred status on that basis is
“precisely the sort of official denominational preference that the Framers
of the First Amendment forbade” (Larson, 456 U.S. at 255). And because
most refugees worldwide currently come from Muslim countries, the
preference will primarily benefit non-Muslims (see infra Section A.2),
making the preference run against a disfavored minority faith in this
country.2 The Executive Order is thus “suspect” and the courts should
“apply strict scrutiny in adjudging its constitutionality.” Larson, 456 U.S.
at 246.
The government counters by asserting an interest in “stop[ping]
attacks by foreign nationals . . . admitted to the United States.” Exec.
Order No. 13,769 § 1. To be sure, preventing terrorism is a compelling
interest. But the Executive Order must be “closely fitted to further the
interest.” Larson, 456 U.S. at 248. It isn’t.
National security is not furthered by a policy of suddenly, flatly, and
universally excluding Muslims whose entry the government has already
The government’s suggestion that it merely “recognize[s] that religious
minorities are more likely to face persecution” (Emer. Mot. 19) cannot be
squared with the Executive Order’s text, which makes merely belonging to
a minority faith the basis for receiving favorable treatment (Exec. Order
No. 13,769 § 5(b)).
2

4

approved. Much less is the policy closely fitted to that end. People from the
seven countries listed in the Executive Order have, collectively, killed zero
people in terrorist attacks in the United States since 1975. Alex
Nowrasteh, Where Do Terrorists Come From? Not the Nations Named in
Trump Ban, NEWSWEEK (Jan. 31, 2017), http://bit.ly/2kWoddx. None of the
top five countries of origin for foreign-born perpetrators of terrorism in the
United States are listed in or covered by the Executive Order. See id. And
homegrown

terrorism—by

non-Muslims—is

a

far

greater

(and

unaddressed) threat. See, e.g., Ellen Nakashima, Domestic Extremists
Have Killed More Americans than Jihadists Since 9/11. How the
Government

Is

Responding,

WASH.

POST

(Oct.

15,

2015),

http://wapo.st/1Qh8Kft. Hence, the policy’s fit with the defendants’
asserted interest is not merely loose; it is nonexistent. As the district court
stated from the bench, the Executive Order would not survive even
rational-basis review—much less strict scrutiny.3
Because the Executive Order cannot withstand strict scrutiny, it also
violates the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1
(2015). RFRA applies strict scrutiny to substantial government-imposed
burdens on religion. See Holt v. Hobbs, 135 S. Ct. 853, 859 (2015). Under
the Executive Order, visa-holding Muslim residents of the United States
cannot make a pilgrimage to Mecca—a mandatory religious obligation to
be fulfilled at least once in a practicing Muslim’s lifetime (Diaa Hadid,
What Muslims Do on Hajj, and Why, N.Y. TIMES (Sept. 8, 2016),
http://nyti.ms/2kYGovS). For if they leave the country and then try to
return, they will be detained and deported. Being jailed and then expelled
3

5

2.

The Executive Order fails the Lemon Test.

The Executive Order also violates the Lemon Test, which requires
that governmental action have a preeminently secular purpose (McCreary,
545 U.S. at 864) and a “principal or primary effect . . . that neither
advances nor inhibits religion” (Lemon v. Kurtzman, 403 U.S. 602, 612
(1971)).
a. The secular-purpose requirement is violated if the “government’s
actual purpose is to endorse or disapprove of religion.” Edwards v.
Aguillard, 482 U.S. 578, 585 (1987) (quoting Lynch v. Donnelly, 465 U.S.
668, 690 (1984) (O’Connor, J., concurring)). The government’s articulated
“secular purpose . . . has to be genuine, not a sham, and not merely
secondary to a religious objective.” McCreary, 545 U.S. at 864.
The secular-effect requirement is violated whenever “it would be
objectively reasonable for the government action to be construed as
sending primarily a message of either endorsement or disapproval of
religion.” Vernon v. City of L.A., 27 F.3d 1385, 1398 (9th Cir. 1994). “[T]he
government may not favor one religion over another” by appearing to
endorse the one or condemn the other. McCreary, 545 U.S. at 875.

because of religious exercise surely meets any definition of a substantial
burden.
6

b. Taking these requirements together, the constitutional question is
“‘whether an objective observer . . . would perceive” the government to
have placed its stamp of approval or disapproval on religion or a particular
faith. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000) (quoting
Wallace v. Jaffree, 472 U.S. 38, 76 (1985) (O’Connor, J., concurring));
accord, e.g., McCreary, 545 U.S. at 862 (purpose determined from same
perspective). This Court must therefore consider whether a hypothetical
reasonable, objective observer would understand the government either
(i) to have intended to mark Muslims as “outsiders, not full members of
the political community” or (ii) to have actually conveyed that message.
Santa Fe, 530 U.S. at 309 (quoting Lynch, 465 U.S. at 688 (O’Connor, J.,
concurring).
Because “reasonable observers have reasonable memories,” the
Court must not “turn a blind eye to the context” but must “look to the
record of evidence showing the progression leading up to” the challenged
policy. McCreary, 545 U.S. at 866, 868. For the objective observer is
“presumed to be familiar with the history of the government’s actions and
competent to learn what history has to show” (id. at 866), which means
that all publicly available information about the genesis, evolution, and
implementation of the challenged policy speaks directly to whether it is an
unconstitutional religious endorsement. And even officially repudiated
7

past acts are not “dead and buried” but remain in the reasonable
observer’s memory, affecting how the final policy is viewed. Id. at 870;
accord Trunk v. City of San Diego, 629 F.3d 1099, 1119 n.19 (9th Cir.
2011). Finally, the Establishment Clause is violated by “both perceived
and actual endorsement of religion” (Santa Fe, 530 U.S. at 305), so a
message of endorsement is unconstitutional even if the government did
not intend it.
c. Disapproval of Islam and favoritism toward other faiths is
apparent from the bare text of the Executive Order. It singles out for
detention, deportation, and exclusion persons from seven overwhelmingly
Muslim nations: Iran (99.5% Muslim), Iraq (99.0% Muslim), Libya (96.6%
Muslim), Somalia (99.8% Muslim), Sudan (90.7% Muslim), Syria (92.8%
Muslim), and Yemen (99.1% Muslim). Exec. Order No. 13,769 § 3(c); PEW
RES.

CTR.,

THE

GLOBAL

RELIGIOUS

LANDSCAPE

45–50

(2012),

http://bit.ly/2k4Us8B.
It also blocks entry of all refugees temporarily and of Syrian
refugees

indefinitely

(Exec.

Order

No.

13,769

§ 5(a),

(c)),

again

disproportionately affecting Muslims. Not only is Syria overwhelmingly
Muslim, but Muslims made up a plurality of all refugees resettled in the
United States last year, the number of Muslim refugees having increased
almost every year over the past decade. Jens Manuel Krogstad & Jynnah
8

Radford, Key Facts About Refugees to the U.S., PEW RES. CTR. (Jan. 30,
2017), http://pewrsr.ch/2kk7ro8.
The disfavor toward Islam is compounded by the Executive Order’s
favoritism toward refugees who belong to minority religions (see Exec.
Order No. 13,769 § 5(b), (e)), as most refugees worldwide currently come
from

Muslim-majority

countries

(Figures

at

a

Glance,

UNHCR,

http://bit.ly/2cmTBiF (last visited Feb. 2, 2017)).
d. While these features of the Executive Order alone communicate
official preference against Islam, the objective observer also perceives
much more.
First, the precursor to the Executive Order was then-candidate
Trump’s repeated promise of a “total and complete shutdown of Muslims
entering the United States.” First Am. Compl. Ex. 1. Second, after public
outcry that a Muslim ban would be unconstitutional, candidate Trump
explained that he would get around the Constitution by papering over the
targeting of Islam: “I’m talking territory instead of Muslim.” First Am.
Compl. Ex. 4, at 6. Indeed, he publicly described this change not as “a pullback” but as “an expansion” of the Muslim ban. First Am. Compl. Ex. 4, at
1 (emphasis added). Third, after the election, President-elect Trump asked
Rudy Giuliani (then being considered for Secretary of State) to figure out
how the “Muslim ban” could be implemented “legally.” First Am. Compl.
9

Ex 17. Fourth, in an interview with the Christian Broadcasting Network
on January 27, 2017—the day he issued the Executive Order—President
Trump declared that the government would now expressly give priority to
Christians over other refugees. First Am. Compl. Ex. 8. And fifth, he
exempted from the ban everyone in the seven listed countries who holds
an Israeli passport (and therefore is likely Jewish). See Message from U.S.
Embassy

Tel

Aviv

Consular

Section,

U.S.

EMBASSY

IN

ISRAEL,

http://bit.ly/2l0KWB8 (last visited Feb. 2, 2017).
Taking all of that into account, an objective observer could hardly
help but perceive governmental condemnation of Islam and endorsement
of other faiths. Indeed, for more than a year President Trump has
bombarded the public with the message that Muslims are “outsiders, not
full members of the political community.” Santa Fe, 530 U.S. at 309
(quoting Lynch, 465 U.S. at 688 (O’Connor, J., concurring)). The Executive
Order thus communicates that Muslims are a disfavored caste in this
country.
That is not a message that the government can or should convey:
“When the government associates one set of religious beliefs with the state
and identifies nonadherents as outsiders, it encroaches upon the
individual’s decision about whether and how to worship.” McCreary, 545

10

U.S. at 883 (O’Connor, J., concurring). The violation of the Establishment
Clause is forthright and flagrant.
B.

The Balance Of Harms And The Public Interest Favor The
TRO And Denial Of A Stay.

The remaining factors likewise favor denial of a stay.
The TRO is necessary, as the district court determined, to protect
against imminent and unconstitutional official discrimination against
Muslims. Since its issuance on Friday afternoon, the TRO has already
resulted in reinstatement of some 60,000 visas revoked under the
Executive Order from people whom the government had previously
screened and approved for entry. Michael Edison Hayden & Maia Davis,
World’s Airlines Are Told It’s Back to Business as Usual for US-bound
Travelers in Wake of Judge’s Order, ABC NEWS (Feb. 4, 2017),
http://abcn.ws/2l8PYvy. There can be little doubt that the government
would immediately reinstate the mass revocation if the TRO were stayed.
For those whose visas are in jeopardy, there would then be no adequate
remedy for the harms.
What is more, “it is always in the public interest to protect First
Amendment liberties.” Joelner v. Vill. of Wash. Park, 378 F.3d 613, 620
(7th Cir. 2004) (quoting Connection Distrib. Co. v. Reno, 154 F.3d 281, 288
(6th Cir. 2002)); accord Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir.

11

2012). Because the Executive Order violates First Amendment rights, the
injuries that it inflicts are irreparable as a matter of law. Elrod v. Burns,
427 U.S. 347, 373 (1976). And, of course, “[t]he public has no interest in
enforcing an unconstitutional” law. KH Outdoor, LLC v. City of Trussville,
458 F.3d 1261, 1272–73 (11th Cir. 2006). Quite the contrary.
On the other side of the equation, the government asserts unfettered
discretion to exclude an entire “class of aliens” whenever it makes “the
predictive judgment” that the “class” threatens national security; and it
argues that judicial review of those decisions offends the public interest.
Emer. Mot. 21–22. But the government has no legitimate interest, much
less a weighty one, in enforcing unconstitutional policies. See Melendres,
695 F.3d at 1002. It has no legitimate interest in discriminating on the
basis of religion. It has made no showing that there is any serious risk
from the people whom it has already vetted and granted the right to be in
the United States. And it has made no showing that judicial review of
unconstitutional conduct undermines governmental authority.4 Rather,
judicial review is the principled constitutional bulwark against naked
abuse of political power that confers legitimacy on all governmental action.

The cases on which the government purports to rely (United States v.
Oakland Cannabis Buyers’ Co-op., 532 U.S. 483 (2001); New Motor Vehicle
Bd. v. Orrin W. Fox Co., 434 U.S. 1345 (1977)) implicate no constitutional
rights.
4

12

The harms to Plaintiffs and the public from a stay are imminent and
extreme; the purported harms to the government are not legally
cognizable. All factors favor the TRO and denial of a stay.
*

*

*

The Executive Order is what President Trump promised all along: a
“Muslim ban.” No amount of rebranding can change that. People are
excluded, detained, and deported for no reason other than their deity and
preferred holy book. The Executive Order is an insult to the fundamental
principles of religious freedom enshrined in our Constitution. It cannot
stand—even for a day.
CONCLUSION

The temporary restraining order was warranted. The stay request
should be denied.

13

Respectfully submitted,
/s/ Richard B. Katskee
KRISTI L. GRAUNKE
MICHELLE R. LAPOINTE
Southern Poverty Law Center
1989 College Avenue NE
Atlanta, GA 30317
[phone]

RICHARD B. KATSKEE
ERIC ROTHSCHILD*
ANDREW L. NELLIS**
BRADLEY GIRARD
KELLY M. PERCIVAL***
Americans United for
Separation of Church
and State
1310 L Street, NW
Washington, DC 20005
[phone]

ANGELO J. CALFO
KRISTIN W. SILVERMAN
Calfo Eakes & Ostrovsky PLLC
1301 Second Avenue
Suite 2800
Seattle, WA 98101
[phone]

* Admitted in Pennsylvania
only. Supervised by Richard
B. Katskee, a member of the
D.C. bar.
** Admitted in New York only.
Supervised by Richard B.
Katskee, a member of the
D.C. bar.
*** Admitted in California
only. Supervised by Richard B.
Katskee, a member of the D.C.
bar.

Counsel for Amici Curiae
Date:

February 6, 2017

14

CERTIFICATE OF COMPLIANCE

The undersigned counsel for amici curiae certifies that:
(i) Pursuant to Federal Rule of Appellate Procedure 29(a)(5), this
brief can be no longer than one-half the maximum length of the party
briefs; and
(ii) under Circuit Rule 32-3(2), a proportionally spaced brief with the
word count divided by 280 cannot not exceed the maximum page limit of
ten pages, half of the pages allowed by Circuit Rule 27-1(1)(d), making the
maximum word count 2800.
(iii) This brief complies with the type-volume limitation of Circuit
Rule 27-1(1)(d) and Circuit Rule 32-3(2) because it contains 2759 words
including footnotes and excluding the parts of the brief exempted by Rule
32(a)(7)(B)(iii); and
(iv) complies with the typeface requirements of Rule 32(a)(5) and the
type style requirements of Rule 32(a)(6) because it has been prepared
using Microsoft Office Word 2010 and is set in proportionally sized
Century Schoolbook font in a size equivalent to 14 points or larger.

/s/ Richard B. Katskee

CERTIFICATE OF SERVICE

I certify that on February 6, 2017, this brief was filed using the
Court’s CM/ECF system. All participants in the case are registered
CM/ECF users and will be served electronically via that system.

/s/ Richard B. Katskee